BALKARAN ALIAS BALLA Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THE appellants have engaged Mr. Arvind Vashisth as their counsel to argue the case. Mr. Vashisth is not present in court. We had made effort to locate him, but we have not been able to. We have heard learned Deputy Advocate General for the State. The conviction of Balkaran @ Balla, Girdhari and Pritam, appellants herein, is based on the evidence of P.W. 2 Pratap Singh and P.W. 4 Kallu. They have allegedly seen the victim in company of the appellants going from one place to the other, where after, the victim was not traced and, later, found to have died. Death, in the instant case, took place by reason of drowning, as has come on evidence from the postmortem report. Neither P.W. 2, nor P.W. 4, specified the date they saw the victim in company of the appellants. However, both of them said that, after they had seen the victim in the company of the appellants, the victim was not seen any more and, later, he was found dead. The court below, accordingly, proceeded on the basis that the victim was last seen in the company of the appellants and, accordingly, the appellants had an obligation to state what happened to the victim in course of or subsequent to such company, which the appellants have refused to reveal in course of their examination under Section 313 of the Code of Criminal Procedure. The fact remains that P.W. 2 and P.W. 4 did not depose that the victim was under the clutches or control of the appellants at the time they saw the victim in the company of the appellants. According to their evidence, as others were walking from one place to the other, so was the victim and the appellants. That incident of walking together is not such a compulsion on the part of the appellants to disclose what happened to the victim in course of such company and subsequent thereto. Apart from the evidence, thus tendered by P.W. 2 and P.W. 4, there is no evidence on record against any of the appellants, linking them with the death of the deceased.

(2.) IT has come on evidence that the victim was not keeping good relationship with his wife. It has also come on evidence that the appellants were residents of the village of the wife of the victim. It was insinuated that, in view of such strained relationship between the wife of the victim and the victim, the villagers residing in the village of the wife of the victim forced the victim into a water body, causing his death. In other words, at the instigation of the wife of the victim, appellants caused the crime, as was alleged against them. The wife of the victim was not charged. No attempt, at the same time, was made to establish that the appellants were in such position that they could be asked to or compelled to commit the crime in question by the wife of the victim. In the circumstances, we are of the view that conviction of the appellants by the court below is not based on evidence and, accordingly, the appeal is allowed. The judgment and order, under appeal, insofar as the appellants are concerned, is set aside. Appellants are on bail. Their bail bonds are cancelled. They need not surrender. Let a copy of this judgment be sent to the court below, along with the lower court records.